Decision-Making Under a Norm of Consensus: A Structural Analysis of Three-Judge Panels

35 Pages Posted: 28 Jun 2006 Last revised: 19 Aug 2009

Joshua B. Fischman

University of Virginia School of Law

Date Written: January 4, 2008

Abstract

This paper estimates a structural model of decision making in judicial panels under a norm of consensus. Using data from asylum and sex discrimination cases in the courts of appeals, the model estimates ideology parameters for individual judges as well as a cost of dissent. I show that a positive cost of dissent for both the majority and the minority is necessary to reconcile the high rate of unanimity with the variation in individual judges' voting records. The parameter estimates of the structural model show that the dissent rate substantially understates the actual level of disagreement within panels and that consensus voting obscures the impact of ideology on case outcomes. A significantly positive cost of dissent for the majority also implies that judges will sometimes compromise to avoid a dissent by another judge, and hence, that case outcomes are not determined purely by majority rule. The methodology developed in this paper can also be used to derive more accurate estimates of judicial ideology that account for the collective nature of judicial decision-making.

JEL Classification: K40, D70

Suggested Citation

Fischman, Joshua B., Decision-Making Under a Norm of Consensus: A Structural Analysis of Three-Judge Panels (January 4, 2008). 1st Annual Conference on Empirical Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=912299 or http://dx.doi.org/10.2139/ssrn.912299

Joshua B. Fischman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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